Feds to alter 'spouse' meaning for FMLA

HOUSTON — While the nation's notion of family is changing to include nontraditional relationships, federal labor law has been slower to catch up, a panel sponsored by the National Conference on LGBT Equality meeting concluded this week.

In the 17 states that recognize same-sex marriages, employees can use the federal Family and Medical Leave Act if their spouse has a serious health condition.

But in the 33 states that don't recognize these unions — a list that includes Texas — same-sex spouses don't have that right to take up to 12 weeks of unpaid leave to care for an ill spouse.

The law, enacted in 1993, also provides up to 12 weeks of leave to care for an ill parent or child or for their own illness. It also covers care of a newborn.

“It's a real shortcoming,” said Jared Make, senior staff attorney with A Better Balance, a New York-based advocacy group that focuses on how worker benefits affect family issues.

“And a lot of people don't even realize it,” he said.

That disparity may not last long.

In December, the Labor Department noted in a blog that it has been revising several of its documents to remove references that deny federal benefits to legally married, same-sex couples in the wake of last year's U.S. Supreme Court decision. The ruling struck down a key part of the Defense of Marriage Act.

“However, those updates — while important — can only do so much,” wrote Laura Fortman, principal deputy administrator of the Wage and Hour Division and author of the post.

“In order to fully implement the Supreme Court's decision, there need to be regulatory changes as well,” Fortman wrote.

The department announced in December that it intends to revise the regulatory definition of “spouse” under the Family and Medical Leave Act.

Make said he thinks the Labor Department eventually will change the regulations that define a spouse. Currently, the agency looks to the laws of the state in which a worker resides, he said.

Federal law should look at the state in which the marriage took place, rather than where the couple is currently living, Make said.

“This 'place of celebration' approach will ensure that legally married same-sex spouses are recognized under federal law even if they move to a state without marriage equality,” he said in an email.